Jerry S. Cohen Award for Antitrust Scholarship: 2023 Winning Articles

The recipients of the 21st Annual Jerry S. Cohen Award for Antitrust Scholarship were announced today by Cohen Milstein. Each year, AAI hosts the presentation of this award at the Annual Policy Conference luncheon. The award is administered by the law firm he founded, Cohen Milstein. The award was created through a trust established in honor of the late Jerry S. Cohen, an outstanding trial lawyer and antitrust writer and given each year to the best antitrust writing during the prior year that is consistent with the following standards established by the Board of Trustees of the Jerry S. Cohen Memorial Fund.

Erik Hovenkamp was selected for his article, “The Antitrust Duty to Deal in the Age of Big Tech,” 131 Yale L.J. 1483 (2022). The article argues that the law on exclusive dealing has failed to distinguish between “primary” and “secondary” refusals to deal, and that the suffocating evidentiary requirements imposed on refusal to deal claims should not be applied to secondary refusals to deal because they do not implicate the same innovation concerns that motivate suspicion of “primary” refusal to deal claims. Instead, the author argues that secondary refusal to deal claims should be evaluated analogously to tying or related vertical restraints.

Gopal Das Varma and Martino De Stefano were selected for their article, “Entry Deterrence, Concentration, and Merger Policy,” 61 Rev. of Indus. Org. 199 (2022). The authors criticize current merger enforcement for weighing post-merger entry as a factor potentially mitigating the otherwise anticompetitive effects of a merger without also considering how the merger could increase incentives by incumbents to engage in conduct calculated to deter future entry. They construct a game-theoretic model which demonstrates that a merger can reduce the likelihood of entry even at elevated profit levels by increasing incumbent incentives to invest in entry deterrence.

The three winning authors will share a $12,400 prize and will each receive an inscribed original artwork created by Lori Milstein.

In addition, this year’s award selection committee conferred six category awards, as follows:

This year’s award selection committee consisted of Zachary Caplan, Trial Attorney at the U.S. Department of Justice, Antitrust Division; Warren Grimes, Professor of Law at Southwestern Law School; John Kirkwood, Professor of Law at Seattle University School of Law; Roger Noll, Professor Emeritus of Economics at Stanford University; Leslie Marx, Professor of Economics at Duke Fuqua School of Business, Robert Lande, Professor of Law at University of Baltimore School of Law; Daniel A. Small, Of Counsel at Cohen Milstein Sellers & Toll PLLC, and Daniel H. Silverman, Partner at Cohen Milstein Sellers & Toll PLLC. (Professor Marx and Professor Kirkwood recused themselves from deliberations relating to their own articles.)